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Appellate counsel not ineffective for failing to challenge habitual offender status

Charles Walker v. Kathy Griffin, 7th Circuit Court of Appeals No. 15-2147, 2016 WL 4501988, 8/29/16

Walker’s lawyer on his direct state appeal decided to challenge the reasonableness of Walker’s sentence, but he didn’t raise an issue about the sufficiency of the evidence to support applying an habitual offender enhancer to Walker. That failure didn’t constitute ineffective assistance of appellate counsel.

When Walker collaterally attacked the performance of his direct appeal counsel, the state court found that his lawyer wasn’t deficient for challenging the lack of evidence to support the application of the enhancer. The missing evidence involved the date of commission of one of the prior offenses, which under state law had to have occurred after conviction and sentencing for the prior countable offense. The state court reasoned that appellate counsel was aware of Walker’s prior record, and his prior record (and the timing of his offenses and convictions) makes it clear he was in fact subject to the enhancer; thus, challenging the evidence presented to support the repeater would have been pointless, as the appellate court could have remanded the case for the state to supply the missing evidence, and counsel could reasonably decide to raise a different sentencing issue he considered more promising. (Slip op. at 2-4). The state court’s conclusion that appellate counsel wasn’t deficient is reasonable, and in any event Walker can’t demonstrate prejudice. (Slip op. at 7-10).

To parry the lack-of-prejudice argument, Walker argued that re-trial on whether he is an habitual offender would violate double jeopardy. The court rejects that claim:

…. It is true that double jeopardy precludes the state from re-trying a case that is reversed based on insufficiency of the evidence to prove the crime. Burks v. United States, 437 U.S. 1, 17–18 (1978). But a conviction for a crime is different from a jury finding that a defendant is a habitual offender. United States v. Monge, 524 U.S. 721 (1998), holds that the Double Jeopardy Clause does not preclude re-trial of sentencing issues in noncapital cases. Following Monge, the Indiana Supreme Court stated in 2005 that earlier Indiana court decisions barring re-trial of habitual-offender status findings that had been set aside on appeal for insufficient evidence were no longer good law. Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind. 2005); see also Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012).

Walker argues that the fact of a prior conviction, which the Supreme Court held need not be found by a jury in Almendarez-Torres v. United States, 523 U.S. 224 (1998), is different from the sequence of prior convictions. We do not see why. Double jeopardy would not have barred the Indiana Court of Appeals from remanding his case to introduce the commission date of the 1989 burglary. See Monge, 524 U.S. 721. ….

(Slip op. at 10).

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